Opinion
Civil Action 21-276 Re ECF 16
12-14-2021
ERIC WAYNE SMITH, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, DISTRICT ATTORNEY OF WASHINGTON COUNTY, and SUPERINTENDENT MELINDA ADAMS, Respondents.
Hon. Arthur J. Schwab, United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Respondent District Attorney of Washington County's Motion to Dismiss Habeas Corpus Petition (“Motion to Dismiss”), ECF No. 16, be granted, and the pending Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”) be dismissed. It is further recommended that a certificate of appealability be denied.
IL REPORT
Eric Wayne Smith (“Petitioner”) is a state prisoner proceeding pro se in this matter. In the Petition, he seeks federal habeas relief from his 2013 conviction in the Court of Common Pleas of Washington County, Pennsylvania, for false imprisonment, terroristic threats, corruption of minors, and indecent assault, at Case No. CP-63-000054-2013. ECF No. 2 at 1; ECF No. 17-5 at 8.
A. Relevant Procedural History
Petitioner was convicted of the above-noted crimes following a bench trial on August 23, 2013. ECF No. 17-5 at 8 and 11. He was sentenced to an aggregate term of six to twelve years on December 6, 2013. Id. at 8 and 12.
Petitioner timely filed a direct appeal with the Pennsylvania Superior Court, which was denied in an unpublished opinion on November 17, 2014. ECF No. 17-6 at 1. Petitioner filed a petition for allocatur with the Pennsylvania Supreme Court on February 26, 2015, which appears to have been treated as timely filed, and was denied on June 16, 2015. ECF No. 17-8 at 1; See also Docket Sheet for Case No. 77 WAL 2015 (available at https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=77%20WAL%202015&dn h=4QP9C5z4UeFhZ%2FRRlzb9xg%3D%3D (last visited Dec. 14, 2021)).
This docket sheet was one of several portions of the state court records related to Petitioner's underlying state criminal proceedings that Respondent failed to provide to this court, despite having been explicitly ordered to do so. ECF No. 7 at 2-3. Respondents are cautioned that failure to comply with the orders of this Court exposes them to the risk of possible sanctions.
The record does not indicate that Petitioner filed a petition for writ of certiorari to the Supreme Court of the United States. As such, his conviction became final on September 14, 2015, 90 days after the Pennsylvania Supreme Court denied allocatur. See U.S. Sup. Ct. R. 13; see also Jenkins v. Sup't of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013) (“On direct review, the Pennsylvania Supreme Court denied Jenkins's petition for allowance of appeal on September 28, 2007. . . . Because Jenkins had ninety days to petition for certiorari to the United States Supreme Court, his conviction became final on December 27, 2007.”).
Petitioner filed a pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq., on or about November 6, 2015. ECF No. 17-9 at 4; see also Docket Sheet for Case No. CP-63-CR-54-2013 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-63-CR-0000054-2013&dnh=NFbRQYV960YehHALIxkNTg%3D%3D (last visited Dec. 14, 2021)). The PCRA trial court appointed counsel, who was replaced twice before an amended PCRA Petition was filed on September 15, 2016. ECF No. 17-9 at 4. After an evidentiary hearing, post conviction relief was denied in a order issued on June 1, 2017. Docket Sheet for Case No. CP-63-CR-54-2013; see also ECF No. 17-13 at 3.
The date on the face of the PCRA trial court's order denying relief is May 31, 2017. ECF No. 17-9 at 1. However, both the trial court docket and the Pennsylvania Superior Court's opinion state that the date of that order actually was June 1, 2017. As such, this Court will presume that June 1, 2017 is the correct date. However, whether May 31 or June 1, 2017 is the proper date does not affect the outcome of this case.
The order denying PCRA relief was not served on Petitioner and, as a result, a second PCRA motion was filed with the Court of Common Pleas of Washington County on July 19, 2017. This resulted in the reinstatement of Petitioner's appellate rights. Docket Sheet for Case No. CP-63-CR-54-2013. A notice of appeal with respect to the trial court's denial of the first PCRA proceedings was filed on August 10, 2017, which the Pennsylvania Superior Court treated as timely-filed. Id., ; see also ECF No. 17-13 at 3-4, n.2. Petitioner's appeal to the Superior Court in his first PCRA proceedings was denied on March 19, 2018. ECF No. 17-13 at 1.
Given the state court's nunc pro tunc restoration of appellate rights, this Court counts the entire period between the trial court's denial of PCRA relief on June 1, 2017, and the filing of the notice of appeal on August 10, 2017, as taking place during the pendency of a “properly filed” state post-conviction review for the purposes of calculating the limitations period under 28 U.S.C. § 2244(d)(2). However, to the extent that any of that period does not qualify for statutory tolling, it should be equitably tolled, as the record supports that Petitioner diligently pursued his rights during that period of time to overcome the extraordinary circumstance of not having been served notice of the trial court's denial of his first PCRA petition. See Holland v. Florida, 560 U.S. 631, 649 (2010).
Petitioner's timely filed petition for allocatur was denied by the Pennsylvania Supreme Court on September 4, 2018. ECF No. 17-12 at 1; see also Com, v. Smith, 193 A.3d 344, 648 Pa. 333 (Pa. 2018) (table).
It is noteworthy that Respondent, in the Motion to Dismiss, indicates that allocatur was denied on October 2, 2018, ECF No. 16 ¶ 11. In its brief, Respondent asserts that allocatur was denied on March 19, 2018. ECF No. 17 at 3. This Court shall rely on the public record cited in the body of this Report, rather than on Respondent's inconsistent assertions.
On December 30, 2018, Petitioner filed a “Motion to Correct Illegal Sentence” in the Court of Common Pleas. Docket Sheet for Case No. CP-63-CR-54-2013; see also Com, v. Smith, 240 A.3d 900 (Pa. Super. Ct. 2020) (table). This was treated as an untimely second PCRA petition, and denied by the trial court on October 21, 2019. Docket Sheet for Case No. CP-63-CR-54-2013; see also Smith, 240 A.3d at 900. Petitioner timely appealed, and the Superior Court affirmed that dismissal on September 1, 2020. In its opinion, the Superior Court held that the second PCRA petition was untimely, and that as a result, it lacked jurisdiction to address its merits. IT There is no indication on the record that Petitioner appealed to the Pennsylvania Supreme Court.
The Court of Common Pleas docket indicates that this motion was filed on December 31, 2018. The Superior Court's order affirming the motion's denial states that it was filed on December 30, 2018. While Respondent indicated in the present Motion to Dismiss that a copy of the Motion to Correct Sentence was submitted therewith, ECF No. 17-1 at 1, it was not. For the purposes of the present Motion to Dismiss, this Court will presume that the date recited by the Superior Court is correct. However, this difference of one day does not affect the outcome of the present Motion to Dismiss.
Strictly speaking, and as discussed above, this was Petitioner's third PCRA petition. However, because both Respondent and the Superior Court refer to it as a “second' PCRA petition, this Court will do so as well, for the sake of consistency.
This Court received the instant Petition on February 26, 2021; however, the signature block on the Petition indicates that it was signed on February 9, 2021. ECF No. 2 at 15. For the purposes of this Order, the undersigned presumes that the Petition was placed on the prison mail system on the same day that it was signed. As such, the Petition has an apparent effective filing date of February 9, 2021.
On June 29, 2021, the District Attorney of Washington County (“Respondent”) filed the instant Motion to Dismiss and brief in support thereof. ECF Nos. 16 and 17. Petitioner filed his response in opposition on July 8, 2021. ECF No. 19. The pending Motion to Dismiss, ECF No. 16, is ripe for adjudication.
For the purposes of this Report and Recommendation, this Court will use “Respondent” in the singular to refer to the District Attorney of Washington County as the moving party.
B. The AEDPA Statute of Limitations
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, which established, generally, a strict one-year statute of limitations for the filing habeas petitions pursuant to Section 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under § 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to § 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented.
1. All asserted grounds for relief have trigger dates of September 14, 2015.
Petitioner raises two claims for relief in the Petition. The first is “Illegal sentence[.]” The second is “Ineffective assistance of counsel[.]” ECF No. 2 at 5 and 7. Petitioner provides little additional elaboration on these claims in the Petition. Further, Petitioner's response to the Motion to Dismiss largely is without coherent argument. ECF No. 19. As best this Court can tell, it appears that Petitioner is attempting to assert each and every claim that he raised in each of his PCRA proceedings. See, e.g., ECF No. 2 at 6 (discussing Petitioner's “illegal sentence” habeas claim in the context of his “motion to correct illegal sentence” that initiated his second PCRA proceeding).
Respondent in the Motion to Dismiss failed to address whether any of Petitioner's claims might have different trigger dates under Section 2244. Instead, it appears that Respondent made a default presumption that all of Petitioner's claims arose together. A review of the Petition reveals that this is the case.
While the Petition is unclear, it appears that Petitioner's asserted grounds of “illegal sentence” and “ineffective assistance of counsel” relate to the grounds raised in his PCRA petitions.
In the first PCRA petition, Petitioner asserted the following bases for relief:
[1]. Did the PCRA court err in finding that trial counsel was effective in advising [Petitioner] to waive his jury trial rights and proceed nonjury and in failing to object to a defective on-the-record oral colloquy by Judge Borkowski?
[2]. Did the PCRA court err in concluding that trial counsel provided effective assistance by erroneously advising [Petitioner] not to testify based on his prior criminal history, where [Petitioner's] only crimen falsi crime was a conviction in 1987 and was inadmissible under Rule of Evidence 609 since the Commonwealth failed to provide notice under that rule?
[3]. Whether the PCRA court erred in determining that trial counsel was effective in failing to present evidence that [Petitioner] suffered from a hernia to show that it would have been physically impossible or extremely difficult for [Petitioner] to have dragged the [victim] up the stairs as alleged?
[4].Whether the PCRA court erred in holding that trial counsel was effective in failing to present various text messages sent by two of the witnesses who testified against [Petitioner] that would have attacked their credibility, including messages that showed that the [victim] stole [Petitioner's] wallet?
[5]. Did the PCRA court err in finding that trial counsel rendered effective assistance on direct appeal by inadequately arguing
[Petitioner's] sufficiency of the evidence claims where the evidence was insufficient to support the crimes?
[6]. Whether the PCRA court erred in determining that trial counsel was effective in declining to challenge the weight of the evidence in a post-sentence motion[?]
[7]. Whether, due to the cumulative errors of trial counsel, [Petitioner] is entitled to a new trial?
ECF No. 17-13 at 4-5; Com, v. Smith, 181 A.3d 1168, 1174 (Pa Super. Ct. 2018).
In his second PCRA proceeding, Petitioner raised the following issues:
[8]. During the bench trial, did the trial judge ignore relevant sentencing factors such as lack of evidence, contradictory and inconsistent testimony of the alleged victim, as well as disregard the corroborating testimony of a credible defense witness, and did this result in a judgment of guilty that makes a strong showing of being bias and prejudicial in nature.
[9]. Did the trial court show impartiality toward the [Petitioner] when the District Attorney made the comment that “perhaps the whole thing simply took place in the boys mind but it didn't matter anyways” and did the trial judge commit an error of law by not declaring a mistrial.
[10]. Did defense counsel subject the [Petitioner] to scare tactics (while discussing a defense strategy) based on his race and the nature of charges against him.
[11], Did the [Petitioner's] legal counsel, appointed by the court, use the [Petitioner's] subjective characteristics to coerce the [Petitioner] into agreeing to a bench trial instead of the jury trial the [Petitioner] wanted.
[12]. Did the bias and prejudice showed to the [Petitioner] by the court rise to the level of a manifest abuse of discretion on part of the sentencing judge and result in a [v zc] illegal sentence being imposed.Smith, 240 A.3d at 900.
The claims raised in Petitioner's PCRA proceedings are renumbered for clarity.
By their nature, each of these claims would have accrued on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2254(d)(1)(A). As stated above, this date is September 14, 2015, 90 days after the Pennsylvania Supreme Court denied allocatur on direct review of Petitioner's conviction on June 16, 2015.
2. The Petition is time-barred.
The calculation of the statute of limitations under Section 2244(d)(1) and (2) for Petitioner's asserted grounds for relief is as follows.
As stated above, the trigger date September 14, 2015. The clock on the AEDPA's one-year statute of limitations ran from that date, until November 6, 2015, when Petitioner's pro se first PCRA petition was filed - a period of 53 days. The clock did not begin running again until March 19, 2018, when the Pennsylvania Supreme Court denied allocatur review of the first PCRA petition.
Petitioner's second PCRA proceedings commenced on December 30, 2018, with the filing of his “Motion to Correct Illegal Sentence” in the Court of Common Pleas. Its dismissal as untimely was affirmed by the Superior Court on September 1, 2020. However, none of this time is excludable from the limitations period because the second PCRA proceeding was not “properly filed” under the meaning of Section 2254(d)(2).
The Pennsylvania Post Conviction Relief Act provides, in pertinent part:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within one year of the date the claim could have been presented.42 Pa. Cons. Stat. § 9545(b)(1)-(2). The Pennsylvania courts adamantly have held that the above timing provisions are jurisdictional in nature, and must be construed strictly. See, e.fc., Com, v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (citing cases). As such, a PCRA trial court is barred even from considering a petition that is not filed within one year of the date that the conviction it is attacking became final (in Petitioner's case, one year from September 14, 2015), unless that petition falls into one of the three exceptions enumerated in the statute, AND was filed within one year of the date that the claim first could have been presented. IT See also Com, v. Fears, 250 A.3d 1180, 1189 (Pa. 2021), reconsideration denied (July 8, 2021).
Here, the Superior Court found that Petitioner's second PCRA petition had been filed more than one year after his conviction became final under the PCRA statute, and that Petitioner had failed to plead - much less demonstrate - that his second PCRA petition fell into one of the above statutory exceptions. Accordingly, the Superior Court affirmed the dismissal of the second PCRA petition for lack of jurisdiction. Smith, 240 A.3d at 900-01.
State court petitions for collateral review do not toll the AEDPA's one-year statute of limitations if they contain defects that implicate that petition's “‘condition[s] to filing,' which go to the application for post-conviction review[.]” Satterfield v. Johnson, 434 F.3d 185, 191 (3d Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 10 (2000)). Failure to satisfy such conditions “prevents a petition from being ‘properly filed,' which in turn prevents application of AEDPA's tolling provision.” Satterfield, 434 F.3d at 191. “Untimely filing, absence of jurisdiction, failure to pay fees, and failure to obtain a requisite certificate of appealability are all examples of flaws going to the application for relief itself.” Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 414-15 (2005)). These requirements prevent tolling because they “‘go to the very initiation of a petition and a court's ability to consider that petition....'” Satterfield, 434 F.3d at 192 (quoting Pace, 544 U.S. at 417).
Applying the above standard to Petitioner's second PCRA petition, it is clear that the state courts lacked jurisdiction to address that petition on its merits under the Pennsylvania Post Conviction Relief Act. As such, Petitioner's second PCRA petition was not “properly filed” under the meaning of section 2244(d)(2), and the AEDPA's statute of limitations was not tolled during its pendency.
Thus, the AEDPA's statute-of-limitations clock began to run again from March 19, 2018 - the date on which Petitioner's allocatur was denied in Petitioner's first PCRA proceedings - to February 9, 2021 - the date on which he executed the instant petition for writ of habeas corpus. ECF No. 2 at 15. This is an additional 1058 days.
In total, the AEDPA's statute of limitations clock ran for 1111 days. This is greater than one year. Instead, in order for these claims to have been timely, the Petition would have to have been filed by January 25, 2019. It was not. Accordingly, these claims are untimely based on the one-year period of limitation set forth in Section 2244(d)(1).
3. Petitioner has not demonstrated entitlement to equitable tolling.
In Holland v. Florida, 560 U.S. 631 (2010), the United States Supreme Court affirmed the availability of equitable tolling of the AEDPA's one year statute of limitations under appropriate circumstances. In its opinion, the Supreme Court first underscored that the one year statute of limitations in the AEDPA was not jurisdictional, and “does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'” Id. at 645 (quoting Day v. McDonough, 547 U.S. 198, 208 (2006)). Given that habeas corpus is, at its heart, an equitable form of relief, and with no well-defined congressional intent to the contrary, the Supreme Court concluded that it is proper, under the principles of equity, to toll the statutory one year period for filing a petition under Section 2254 in certain cases. Holland, 560 U.S. at 646-47.
In order for a delay in filing a habeas petition to qualify for equitable tolling, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Id., at 649 (quoting Pace, 544 U.S. at 418). “Mere excusable neglect is not sufficient.” Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[i]n non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the extraordinary circumstances required for equitable tolling.” See Fahy v. Hom, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a court within the Third Circuit, it did affirm the practice of courts within this circuit of granting equitable tolling in cases where the above-mentioned conditions have been met. See, e.g., LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). Importantly, the United States Court of Appeals for the Third Circuit has emphasized that “[e]quitable tolling is appropriate when ‘the principles of equity would make the rigid application of a limitation period unfair[.]”' Id. at 275 (quoting Miller, 145 F.3d at 618). Additionally, it should be applied only where it is “demanded by sound legal principles as well as the interests of justice.” Id. (internal quotes and citations omitted).
Applying this standard to the present case, it is apparent that there is nothing in the record that would support the equitable tolling of the AEDPA's statute of limitations in this case. Accordingly, the Petition is untimely. Respondent's Motion to Dismiss should be granted, and the Petition should be dismissed.
D. Certificate of Appealability
Finally, a certificate of appealability should be denied because jurists of reason would not find it debatable whether the claims in the Petition were barred by the AEDPA's one-year statute of limitations. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Respondent's Motion to Dismiss, ECF No. 16, be granted, and the Petition be dismissed as untimely. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v, Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.